1. This petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) for setting aside the award passed by the Arbitrators insofar as it relates to Claim Nos.1, 2, 4, 6 and 8 made by the first respondent (hereinafter referred to as "the Contractor"). The particulars regarding the claim and the award are as under: The petitioner (hereinafter referred to as “the Employer”) has filed the present original petition in respect of the grant of the above said awards.

BACKGROUND FACTS

2.1. The brief facts giving rise to the dispute as well as the passing of the award are as follows: The Contractor was awarded a contract by way of an agreement entered between the Employer and the Contractor on 25.6.2007 for Improvement, Widening and Strengthening of Existing Roads, Construction of storm water drains and cross masonry work inside Thiru Vi-Ka Industrial Estate, Guindy. The contract price, as per the agreement for the work, was ` 9,19,46,759/-. The date of signing of the agreement, as stated above, was 25.6.2007 and the date of commencing of work was 15.6.2007 and as per the terms of agreement, the period fixed for completion of the work was seven months, namely on or before 14.1.2008. The period of contract for completion of the work was extended up to 31.3.2008 and second extension was granted up to 30.6.2008. It is also stated that the Contractor purported to terminate the contract on the ground of breach by the Employer, but as the time was extended from 31.3.2008 to 30.6.2008, the Contractor continued the work and ultimately, the Employer has terminated the contract on 30.3.2009 on the ground of default stated to have been committed by the Contractor.

2.2. As per the terms of agreement, the Contractor has raised number of disputes and nominated the third respondent as Arbitrator and the Employer has nominated the fourth respondent as its nominee and respondents 3 and 4 (Arbitrators) have appointed the second

2.3. The Arbitral Tribunal while rejecting Claim No.5, 7 and 9, has also rejected part of Claim No.6 in respect of loss due to idle machinery. The Contractor has not challenged the rejection of the said claims by the Arbitral Tribunal. On the other hand, in respect of Claim Nos.1, 2, 3, 4, 6 (Part) and 8, the following amounts were awarded, namely:

2.4. Neither the Contractor nor the Employer has challenged the claim awarded in respect of Claim No.3. Except Claim No.3, in respect of other claims, namely Claim Nos.1, 2, 4, 6 (Part) and 8, in respect of which award has been made, the Employer has filed the petition to set respondent as a Presiding Arbitrator. The Contractor has made the following nine claims:

aside the same.

CONTENTIONS

3.1. The main contention pertains to the award granted in respect of revision of rates on the basis that the agreement does not provide a clause for revision of rates. It is contended that as per the clause in the agreement, the rate quoted by the bidder shall be fixed for the duration of contract and is not subjected to any adjustment on any account. Moreover, there is no application of price adjustment under the contract and therefore, the question of revision of rates as claimed by the Contractor is opposed to the terms of the contract and ought to have been rejected by the Arbitral Tribunal.

3.2. It is further contended that as per the terms of agreement, which contemplates the procedure for initiation of arbitration, the arbitration can be commenced only as per Clause 23.2 of the Conditions of Contract, which contemplates issuance of notice in respect of a dispute by a party and giving of reply thereafter within fourteen days and if no reply is received or the reply is not acceptable, the affected party can suggest for arbitration, and, according to the Employer, in the present case, the Contractor has appointed Arbitrator even before the dispute or claim was rejected and, therefore, the proposal for appointment of arbitrator by the Contr